2013 QCCA 1748, 2013 QCCA 1748

Droit de la famille — 132747 2013 QCCA 1748 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023155-120 ( 500-12-298680-095 ) MINUTES OF THE HEARING DATE: October 11, 2013 THE HONOURABLE MR. JUSTICE ALLAN. R. HILTON APPELLANT/INCIDENTAL RESPONDENT COUNSEL A... T... Mtre Doree Levine ROBINSON SHEPPARD SHAPIRO S.E.N.C.R.L RESPONDENT/INCIDENTAL APPELLANT COUNSEL C... S... Mtre Maria Rita Battaglia MARIA R. BATTAGLIA, AVOCATS Me . MOTION TO REQUEST A POSTPONEMENT FOR HEARING SCHEDULED FOR DECEMBER 5TH, 2013. MOTION FOR PERMISSION TO ADDUCE NEW INDISPENSABLE EVIDENCE.

Clerk: Elena Captari Court Room: RC.18 HEARING 9 h 35 Beginning of the hearing. Identification of counsel. 9 h 36 Exchanges between Justice Hilton and counsel. 9 h 40 Recess. 11 h 34 Resumption of the hearing. 11 h 34 Exchanges between Justice Hilton and counsel. 11 h 41 BY THE JUDGE : See the judgment on page 3. 11 h 41 End of the hearing. Elena Captari Clerk JUDGMENT [ 1 ] Counsel for the petitioner C...

S...seeks a postponement of the hearing of the appeal on December 5, 2013 on the basis that she is scheduled that same day to be before the Superior Court in the midst of a three day trial that has been fixed peremptorily.

As I explained at the hearing, and as both counsel acknowledged, there is a judicial hierarchy in Quebec, as a result of which hearing dates in the Court of Appeal have precedence over hearing dates in the Superior Court, just as those in the Supreme Court of Canada have precedence over those in this Court. [ 2 ] Nevertheless, counsel for the petitioner advised me that she has taken measures to ensure the representation of her client in the Superior Court should I be of a view to dismiss her motion, which I am.

In order to accommodate her as much as possible, however, I will order that the hearing of the appeal in this matter be fixed to proceed at 2:00pm, without the necessity of either counsel being obliged to attend prior thereto.

In this manner, she will be able to spend the morning at the trial in the Superior Court. [ 3 ] With respect to the motion to adduce new evidence based on article 509(2) C.C.P. , given that a judge in chambers lacks jurisdiction to adjudicate it and that there are no openings for the hearing of motions presentable to the Court prior to December 5, I will defer that motion to the panel of the Court hearing the appeal.

FOR THESE REASONS: [ 4 ] The motion to postpone the hearing of the appeal on December 5, 2013 is dismissed, without costs, and it is ordered that the hearing of the appeal commence at 2:00pm that day, without the necessity of either counsel to be present in Court before then; [ 5 ] The motion to adduce new evidence is deferred to the panel of the Court hearing the appeal.

ALLAN R. HILTON, J.A.